By Abhijeet Mukherjee Barrister

Outer Temple Chambers

London

To consider the special challenges to advocacy in an Inquest concerning medical treatment and how best to overcome them

To provide a guide to good advocacy in the Coroners’ Courts

To deal specifically with the cross-examination of doctors and expert medical witnesses

Highlighting pitfalls in advocacy

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• “the act of pleading for, supporting, or recommending; active espousal”[Origin: 1375–1425; late ME advocacye < ML advocātia. See ADVOCATE, -ACY]

– Dictionary.com • Advocacy is putting your case • In an Inquest ,this means putting your case

to persuade the Coroner to determine that which is in the best interests of your client

• It therefore involves knowing your case • Advocacy will involve cross-examination of

witnesses: doctors, nurses, pathologists & experts

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Coroners Act 1988 Coroners Rules 1984 Case Law

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Inquest is fact- finding exercise No one on trial No sides : only interested parties

“the Coroner is almost unique within our legal system, having the role of an ‘inquisitor’ rather than simply presiding over court proceedings”

[Dorries, 2nd Edition, Chapter 1.01]

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The key to good advocacy is preparation Forming a ‘theory’ of your case is vital Your role is defined by the client’s needs

and aspirations from the inquest Some clients want answers to specific

questions: consider whether they can be realistically dealt with in the inquest

Other clients are happy to leave it to you to do what you think is best

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Give serious consideration to obtaining expert reports

We are lawyers not doctors ! Your position is considerably strengthened

by having the benefit of expert opinion Don’t take the approach ‘we can get expert

opinion after the inquest’ unless a straightforward factual issue e.g. patient falls from bed – usually an opportunity lost

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Analyse the issues – identify correct expert/experts

Witnesses: Who do you need to have at the inquest ?

Consider a pre-inquest review if appropriate

Establish early contact with the Coroner’s officer – a useful ally to have

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Coroner has discretion whether to disclose statements or not

Practices vary widely R v HM Coroner for District of Avon Ex

Parte Bentley [2001] EWHC Admin 170 : need for Coroner to exercise discretion fairly and family’s right to participate

Aim to obtain as much disclosure as possible

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Is yours a case of neglect ? Unlikely but always consider.

Classic definition:‘Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical

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condition is such as to show that he obviously

needs it may amount to neglect. So it may be if

it is the dependent person’s mental condition

which obviously called for medical attention’.

Jamieson

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Whether Article 2 is engaged in your case determines the scope of the inquest

Article 2 is engaged if ‘gross negligence’ If Article 2 is engaged, the scope of the

inquest is wider beyond a ‘Jamieson’ inquest

In practice, little difference if Coroner decides to have full inquiry

Regardless of Article 2, aim to press for as full an inquiry as your client needs

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Coroner may have decided to have one If not consider whether you should apply for a

jury Most clients would prefer to have one; public

element to the investigation of the death Test for jury in a hospital death: S. 8.(3)(d) of

the Coroners Act, ‘..the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public’.

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In order to assess this test, consider the ‘breach of duty’ and ask yourself the simple question, how easily could this happen again

If ‘simple’ negligence , unlikely to get a jury If a systems failure, e.g. systemic breach of

hospital protocol, ask for jury More likely to get a favourable verdict from

the jury – not case-hardened Resistance : Some coroners don’t want juries

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Always remember to dress appropriately Always remember to convey condolences

to the client’s family if not done already Always remember to maintain an

appropriate demeanour : gage the mood of your client

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Other lawyers in an inquest are not your opponents, they are other interested parties

Have a chat before: find out as much as you can about the angle they will take & their competence !

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Likely to be ‘independent’ Not a defensive clinician Consider how best to maximise this If death unconnected to presentation,

invite an opinion as to how the chain of events occurred

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Also likely to be ‘independent’ Assess how supportive they are or are

capable of being Don’t alienate

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Will usually be a narrative verdict Consider draft narrative at outset of case Rule 40 does not permit advocate to

address Coroner on the facts – different Coroners observe to different degrees

Rule 42 stipulates that verdict must not determine criminal or civil liability – must not blame

Can include acts or omissions

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This permits Coroner to take action to prevent similar fatalities

Can utilise this Rule to ask questions of current practices and procedures

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Most difficult part of advocacy : cross examination

Calibrate style of cross examination to the nature of witness’s evidence

Avoid ‘one size fits all’ approach Recognise need to have different gears Don’t boil the frog Check for the gaps in the statements Go ‘behind the bullshit’ Know when to stop

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If a number of clinicians giving evidence, consider divide and rule, e.g. if SHO left in lurch by Registrar ask questions about how things would have been different

If Consultant not likely to be happy with treatment given, consider asking what would have been better approach to avoid death and/or prevent recurrence

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Dealing with previously undisclosed information – minimise by seeking as much relevant disclosure as possible

Intransigent Coroner reluctant to have wide inquiry – emphasise the importance to the family and need for full inquiry

Defensive and difficult witnesses – don’t boil the frog

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Convey condolences to client Manage client’s expectations Be respectful of Coroner’s Court and the

proceedings but never diffident Connect controversial questions to need

to establish facts and/or cause of death Do not fear asking difficult questions Be tenacious

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Raise Rule 43 at early stage so as to allow for questions on ongoing practice

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GOOD LUCK !

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